The EU's Mandate for Negotiating a New Partnership with the UK

1.1 Summary

The debate is the first to take place on the basis of the new power given to the European Scrutiny Committee (ESC) in section 13A of the European Union (Withdrawal) Act 2018 to review EU legislation made or proposed during the post-exit transition period and to put forward a motion to be debated and voted on if the ESC is of the opinion that the law in question “raises a matter of vital national interest to the United Kingdom”. The legislation in question is the Council Decision establishing the EU’s negotiating mandate (adopted on 25 February 2020) for the EU-UK future relationship negotiations. The UK Government published its negotiating objectives on 27 February. The negotiations began on 2 March. However, planned negotiating rounds in mid-March and early April did not take place because of the coronavirus outbreak. Negotiations resumed in late April by video conference. Negotiating rounds so far have not resolved the major differences between the two parties on key issues, including the EU’s proposed “level playing field” commitments, fisheries, police and judicial co-operation, and governance.

1.2 Parliamentary scrutiny during transition

While the UK was an EU Member State, the European Scrutiny Committee (ESC) assumed a role in domestic Parliamentary scrutiny of EU legislation (including decisions of EU institutions). This role lapsed when the UK left the EU on 31 January 2020.

However, the ESC was given a new statutory role in the context of the transition period by the EU (Withdrawal Agreement) Act 2020. Section 29 of that Act inserts new section 13A into the EU (Withdrawal) Act 2018. Under this new arrangement, the ESC can force a debate to take place on the floor of the House of Commons if certain conditions are met. These conditions are that:

• the ESC has published a report in respect of any EU legislation made, or which may be made, during the implementation period;
• the report states that, in the ESC’s opinion, the EU legislation raises a matter of vital national interest to the UK;
• the report confirms the ESC has taken such evidence as it considers appropriate as to the effect of the EU legislation and has (if appropriate) consulted relevant Departmental Select Committees with an interest in the EU legislation; and
• the report has set out the wording of a motion to be moved in the House of Commons (to allow a debate to take place)

If this happens, a Minister must, within 14 Commons sitting days of the report being published, make arrangements for the motion to be debated and voted on in the House of Commons.[1]

Section 13A creates a parallel role for the House of Lords EU Committee, requiring a debate and vote in the House of Lords where similar conditions are met.

1.3 Report and debate on the EU’s negotiating mandate

The definition of “EU legislation” in section 13A includes an “EU decision”. Since the EU’s negotiating mandate is underpinned by a Council Decision the ESC can report and require a debate to take place on it.

In its First Report of Session 2019-21 (agreed on 11 March 2020), the Committee set out its view that the Council Decision and Annex establishing the EU’s negotiating mandate (adopted on 25 February 2020) raised matters of vital national interest to the UK. Before deciding whether to put forward a motion under section 13A(1)(c) of the 2018 Act, the Committee consulted 24 Select Committees which it considered were also likely to have an interest. Twenty-three responded, with 21 providing a substantive response. A summary of the key issues raised by those Committees, as well as their full responses, were published in the European Scrutiny Committee’s Fifth Report of Session 2019-21 (reported to the House on 30 April 2020), along with the motion to be debated and voted on in the House on 4 June.

As required by the Act, the report states the Committee’s opinion that the decision “raises matters of vital national interest to the UK” and that relevant Departmental Select Committees have been consulted. The form of motion proposed by the Committee was:

That this House, having regard to the constitutional and legal functions enshrined in the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, urges the Government to conduct its negotiations with the European Union with the fullest possible transparency to facilitate essential parliamentary scrutiny; also urges the Government to make regular progress reports on the negotiations, including on stakeholder contributions to the consultation on The Future Relationship with the EU: the UK’s Approach to Negotiations, and to address the issues identified by the European Scrutiny Committee in its Fifth Report of Session 2019–21, HC 333, as matters of vital national interest.

The motion represents a statement of opinion of the House of Commons and would not (in itself) have any legal consequences for the negotiations if adopted.

A similar debate took place in the House of Lords on 16 March 2020, after the Lords EU Committee exercised its parallel powers under the Act.

1.4 UK and EU negotiating objectives

Following the Council Decision establishing the EU’s negotiating mandate on 25 February, the Government published its negotiating approach in a command paper, The Future Relationship with the EU: the UK’s Approach to Negotiations, on 27 February.

The EU negotiating directives propose an economic partnership, a security partnership and co-operation on other issues within a single overarching governance structure. This would have a dispute resolution system in which the Court of Justice of the EU (CJEU) provides interpretations of questions of EU law.

Both the EU and UK agree on the aim of zero-tariff and zero-quota trade between the UK and EU. The EU is, however, only prepared to grant this “privileged” access to its market if the UK agrees to “robust” level playing field commitments and an agreement on fisheries providing continuity in access to UK waters.

The EU’s proposal for a security partnership provides for termination of law enforcement and judicial co-operation if the UK were to denounce the European Convention on Human Rights or abrogate domestic law giving effect to it.

The UK command paper proposes a suite of agreements, with agreements on fishing, aviation, nuclear co-operation and law enforcement and judicial co-operation, separate to its proposed free trade agreement. These agreements would have their own distinct governance arrangements.

The Government rules out regulatory alignment with the EU, jurisdiction of the CJEU and supranational control over the UK in any area of the proposed agreements. In particular, the UK will not agree to be bound by “level playing field” obligations, such as, for example, rules on government subsidies to industry, workers’ rights and environmental protection. On fisheries it proposes annual negotiations with the EU and rejects continuity in terms of EU access to UK waters.

On the proposed security partnership, the Government says that the agreement should not specify how the UK or EU protect and enforce human rights within their legal systems. While the EU has proposed that the security partnership also encompasses foreign affairs and defence co-operation, the Government does not view co-operation in these areas as requiring a treaty framework.

The UK and EU negotiating positions are analysed in more detail in the Commons Library briefing paper 8834, The UK-EU future relationship negotiations: process and issues.

Commons Library briefing paper 8920 The UK-EU future relationship negotiations: summary of positions includes tables comparing the UK and EU positions across the range of issues (updated to include analysis of the treaty texts tabled by both sides).

The negotiating positions in some specific sectors are analysed in the following briefing papers:

Commons Library briefing paper 8852 The UK-EU future relationship negotiations: Level playing field

Commons Library briefing paper 8927 Fisheries: UK-EU future relationship negotiations

Commons Library briefing paper 8832 The UK-EU future relationship negotiations: Transport

1.5 The negotiations so far

The negotiations on the future UK-EU relationship began on 2 March 2020. The initial terms of reference for the negotiations published at the end of February envisaged five rounds of negotiations up to the middle of May 2020, with further rounds to be mutually agreed. The high-level UK-EU meeting envisaged for June 2020 would be an opportunity to take stock of progress “with the aim of agreeing actions to move forward in negotiations”.

The European Commission published a draft treaty text on 18 March covering all aspects of the EU’s envisaged future relationship with the UK. This is analysed in Commons Library briefing paper 8923 The UK-EU future relationship: the March 2020 EU draft treaty and negotiations update

The UK also tabled texts covering some of its proposed suite of agreements, including a free trade agreement. These were not made public and the Government asked the European Commission not to share these texts with the Member States.

Lockdowns across Europe in the wake of the coronavirus outbreak meant that the originally planned second and third round of negotiations did not take place. On 15 April, the two lead negotiators, David Frost (UK) and Michel Barnier (EU) met by videoconference and announced a new schedule of negotiations. This would involve three new rounds to take place by videoconference in the weeks commencing 20 April, 11 May and 1 June.

Following the second round of negotiations, Mr Barnier said that the UK had “refused to engage seriously on a number of fundamental issues. He referred to a lack of progress on four issues where the positions of the two sides continued to differ: i) level playing field; ii) governance; iii) police and judicial co-operation; and iv) fisheries.

A UK Government statement referred to promising convergence in some trade and related issues. But it said that there would be no progress on level playing field and governance provisions until the EU dropped its insistence on imposing conditions on the UK which are not found in the EU’s other trade agreements and “do not take account of the fact that we have left the EU as an independent state”.

In evidence to the House of Lords’ EU Committee on 5 May, the Chancellor of the Duchy of Lancaster Michael Gove said that the Government would be willing to drop the objective of a “zero tariff, zero quota” free trade agreement and accept some tariffs if this meant not signing up to the level playing field arrangements the EU wanted.

In his statement following the third round, Mr Frost said that the main obstacle was the EU’s “novel and unbalanced proposals” on the level playing field. He said these were not based on precedent. Similarly, he said the EU’s demands on fisheries were “manifestly unbalanced” and did not respect the UK’s future status as an independent coastal state.

In his statement following the third round, Mr Barnier rejected the UK suggestion that there could be some tariffs, similarly to those found in the EU-Canada agreement, without there being level playing field provisions. He also said this would require a much more lengthy negotiation of each tariff line, requiring an extension to the post-Brexit transition period. He said that the negotiations on different topics were linked with agreement in one area requiring agreement in others. He said that some of the UK’s requests went beyond what could be found in the EU’s other free trade agreements.

The fourth round of negotiations takes place from 2 to 5 June.

1.6 Publication of UK texts and letter to Michel Barnier

The UK Government published the ten draft treaty texts it has tabled in the negotiations on 19 May. The Government also published a letter from David Frost to Michel Barnier sent on the same day. Mr Frost said that the UK treaty texts were based on precedent from existing EU agreements with third countries. He contrasted these with examples of where the EU was not willing to replicate commitments found in these other agreements and was making additional demands.

In his response, Mr Barnier said he did not think such an exchange of letters was “necessarily the best way to discuss on substantial points”. He said the EU would “not accept cherry picking” from past agreements and that its principal reference point was the Political Declaration (PD) agreed with the UK Government in October 2019.

For a fuller overview of the negotiations so far and the exchange of letters between Mr Barnier see Commons Library briefing paper 8923 The UK-EU future relationship: the March 2020 EU draft treaty and negotiations update

1.7 Timeline and transition period

The loss of negotiating rounds, the switch to negotiating by videoconference and the diversion of resources and political attention towards addressing the coronavirus outbreak has increased concerns about the viability of the timeline for concluding an agreement. However, in his evidence to the House of Commons Future Relationship Committee on 27 April Michael Gove suggested that the coronavirus crisis “should concentrate the minds” of EU negotiators.

The Scottish and Welsh Governments, the Scottish National Party and Liberal Democrats and several other organisations have called for an extension to the post-Brexit transition period in order to give more time to negotiate an agreement. The transition period ends on 31 December 2020, but the Withdrawal Agreement (WA) provides for an extension of the transition period for up to two years if agreed by the end of June 2020. The Government has legislated to prohibit itself from seeking an extension and continues to reiterate that it will not do so.

The timeline and the process for extending the transition if the UK Government changes it position on this are discussed in more detail in Commons Library briefing paper 8929 UK-EU future relationship negotiating timetable: extending the transition.

[1] Similar arrangements must be made in the House of Lords if its EU Select Committee publishes a report of the same kind.